Opinion
May 16, 1951.
1. — Drains. Landowners who signed articles of association for formation of a drainage or levee district could not object and have their lands removed from the articles of association, so as to reduce acreage below majority of acreage involved, merely because they were not fully cognizant of their obligation when they signed, in view of statutory privision that any person having signed articles of association shall have no right to have proceedings dismissed as to him without written consent of majority in acreage of owners who signed articles.
2. — Drains. The objectors in action for the formation of a drainage or levee district have right to show that the purpose for which the district was being organized would not reclaim or protect the lands in such drainage district from effects of overflow or other waters.
3. — Drains. In action for the formation of a drainage or levee district, evidence of objectors was sufficient to establish that proposed district would not and could not accomplish purposes for which it was being formed, so as to require dismissal of petition of petitioners.
Appeal from Circuit Court of Ripley County. — Hon. Randolph H. Weber, Judge.
AFFIRMED.
Phillips Phillips for Appellants.
I. The owners of a majority of the acreage in the area of the proposed levee district signed the petition. (Motion for New Trial, Point X). The Trial Court found in its order, that the total acreage in the proposed drainage district was 28,151.36 acres. He further found that the 165 persons signing the petition owned a total of 17,224.86 acres of said total, which is, of course, a majority of the acreage in the proposed district. The Court further found that 63 persons who signed the Articles of Association and were named in Exhibit "Z" represented the objectors and were protesting and objecting that they were not fully cognizant of their obligations and that they were not willing to obligate their lands and themselves to pay the tax or taxes which might be assessed for making the improvement, and that they owned a total of 5,858 acres. Then by subtracting the latter figure from the 17,224.86 acres the Court came to the conclusion that the petition was signed by owners representing only 11,366.86 acres which was less than a majority of the acreage in the district and therefore denied the petitioners the right to incorporate the district. The 63 persons referred to in the Trial Court's order were a group of persons listed by the defendant on Exhibit "Z" and on which the following agreement was reached: "The Following persons signed the Articles of Association: And they will testify that they are not willing and did not intend by signing the Articles of Association to obligate themselves to pay the tax or taxes which may be assessed against their respective lands or other property to pay the expense of making the improvements that may be necessary to effect the reclamation or protection of said lands or other such property so formed into a levee district." It will be noted that all of the persons listed signed the Articles of Association. A study of the list referred to above (Exhibit "Z") will show that the first 32 individuals listed thereon, signed both the Articles of Association and exceptions thereto. However, it will further be found that the last 31 listed on said exhibit, although signing the Articles of Association, never at any time signed any exceptions, nor objected to the formation of the district. When the Trial Court referred to them as "objectors," it was doing so without any basis whatever. The appellants contend that they were not objectors and that the Trial Court committed error when the acreage owned by them was subtracted from the petitioners' total acreage. A compilation reveals that the last 31 persons named on the aforesaid list owned 2,774 acres in the proposed district. The Trial Court in its findings stated that the petitioners owned 11,366.86 acres. If the 2,774 acres aforesaid is added to the 11,366.86, we have a total of 14,140.86 acres which is more than a majority of the total acreage of 28,151.36 acres in the district. Consequently, the finding of the Court that less than a majority of the acreage in the proposed district was owned by the signers on the petition is erroneous. II. The persons signing the aforesaid petition were unauthorized to make any objection under the statute. (Motion for New Trial, Point IX). As stated in Point I of this brief, all of the 63 persons signing Exhibit "Z" aforesaid, had also signed the Articles of Association. Under the provisions of Section 12,495 Mo. R.S.A., these individuals never had any authority to object to the formation of the district. Said Section of the Statute provides as follows: "any owner of real estate or other property as herein described in said proposed district, who may not have signed said Articles of Association, objecting to the organization and incorporation of said levee district may, within forty-five days after the date on which said Articles of Association and petition were filed, file his objection or objections why such levee district should not be organized and incorporated." The Appellant urges that after the 63 property owners had signed the Articles of Association, that they were then unauthorized to object to the organization and incorporation of the levee district under the above statute. Also that the finding of the Trial Court that these were "objectors" was erroneous, first, because they weren't objecting and second, because they were unauthorized to object. III. None of the signers of the Articles of Association has had the proceedings dismissed as to him. There is only one way in which a property owner who has signed the Articles of Association can have the proceedings dismissed as to him. This means is specified in Section 12,495 M.R.S.A. In such statute is the following provision: "* * * Any person having signed the Articles of Association shall have no right to have said proceedings dismissed as to him without the written consent of a majority in acreage of the owners who signed said Articles." An examination of the files will disclose that not one person that signed the Articles of Association has conformed to the provisions of the above statute by having the case dismissed as to him after obtaining the written consent of the majority in acreage of the owners who signed the Articles. Neither will the record disclose one single instance where an attempt has been made to obtain such dismissal. No one can contend, not even the Court, that Exhibit "Z", listing the 63 property owners, is equivalent to "the written consent of the majority in acreage of the owners who signed the Articles." The aforesaid exhibit was not intended to be a motion to dismiss as to the persons named thereon and even if it was, it utterly failed to comply with the statute since there were only 5,858 acres represented on the stipulation, which is considerably less than a majority of the 17,224.86 acres of land within the area sought to be incorporated as a levee district. IV. If the stipulation aforesaid, was an attempt on the part of the signers thereof to object to the incorporation of the district, then such objections do not comply with the Statutes. The Articles of Association were filed on the 16th day of July, 1949, Exhibit "Z" was filed on July 23, 1950, over a year later. If the signers thereof were "objectors" to the formation of the levee district, as they were erroneously referred to by the Trial Court, then in that event their objections were out of time and could not be considered. Again citing Section 12,495 Mo. R.S.A., we find the following: "Any owner of real estate or other property as herein described in said proposed district, who may not have signed said Articles of Association, objecting to the organization and incorporation of said levee district may, within forty-five days after the date on which said Articles of Association and petition were filed, file his objection or objections why such levee district should not be organized and incorporated." It will be seen from the above provision that all objections to the formation of a levee district shall be made within forty-five days after the filing of the Articles of Association and petition. An examination of the files will reveal that Exhibit "Z" was filed one year and seven days after the Articles of Association and petition were filed. Therefore, Appellants contend that said exhibit could not be considered by the Trial Court as an objection of 63 persons to the formation of the levee district, but could only be considered for the purpose for which it was intended, which was clearly set out in the caption of said exhibit. V. Petitioners cannot have proceedings dismissed as to them by stating that they did not intend that their land would be taxed for its proportionate share of the entire cost. (Motion for New Trial, Point VIII). Exhibit "Z" was filed for the exceptors for the purpose, and only for that purpose, of showing that the persons named therein would testify, if present, that they were not willing and did not intend by signing the Articles of Association to obligate themselves to pay the tax or taxes which might be assessed against their respective lands or other property to pay the expense of making the improvements that might be necessary to effect the reclamation or protection of the lands included in the proposed district. We have already discussed, in this brief, the fact that Exhibit "Z" could not be considered as an objection of the 63 persons named therein to the formation of the levee district, for the reasons stated supra. That only leaves for consideration the question of whether those individuals, over a year after they had signed the Articles of Association, could, by saying that they did not intend to conform to some of the provisions in said Articles, cause the refusal of the Court to incorporate and form the levee district. It is a well recognized rule of law that when a party having the ability to read and understand an instrument fails to do so, and signs it without reading, he is bound thereby unless fraud was practiced upon him. There was no proof of fraud being practiced (in the instant matter) on any person signing the Articles and there was no charge thereof. See Groff v. Longsdon, 239 S.W. 1087; Rau v. Robertson, 260 S.W. 751. In State ex rel. St. Louis Car Company v. Hughes, 152 S.W.2d 193, 348 Mo. 125, the Supreme Court held that a person who is sui juris, in full possession of his faculties, able to, and with ample opportunity to read, and who intentionally signs a paper, is in the absence of fraud or mistake, conclusively presumed to know its contents, and cannot be heard to say that the paper did not express the real contract. In the case of Edmund S. Mills Corporation v. Stinebaker, 67 SW (2) 821, the Court held that where a competent party has full opportunity to read an instrument before its execution, the law presumes he knew its contents, and he cannot, subsequently, take advantage of his own negligence and contend that the instrument does not express real contract. In Reddick v. Union Electric Company, 243 S.W. 382, 210 Mo. App. 260, the Court held that where a party is sui juris, in possession of his faculties, is able to and has full opportunity to read an instrument signed by him, and executes it without fraud passed on him, the law presumes that he knew its contents, and he will not be permitted to take advantage of his own fault or negligence or say that the instrument did not express the real contract. In 17 Corpus Juris Secundum No. 487 the following statement is found: "As a general rule a person cannot avoid a written contract into which he has entered on the ground that he did not attend to its terms, that he did not read the document which he signed, that he supposed it was different in its terms or that it was a mere form, and this doctrine has been affirmed by numerous courts and citing Corpus Juris with approval on such well settled rule. In this connection it has been said that one is under a duty to learn the contents of a written contract before he signs it, and that if, without being the victim of fraud, he fails to read the contract or otherwise to learn its contents he signs the same at his peril, and is estopped to deny his obligation, will be conclusively presumed to know the contents of the contract, and must suffer the consequences of his own negligence." Again in 8 Corpus Juris 797 we find the following statement made relative to the execution of negotiable papers: "But one who signs a note cannot set up a defense that he did not read the fine print on its face, where it was easily visible, and he could have read it before signing." On the other hand, mere mistake or inadvertence in signing the instrument is no defense against a bona fide holder and the maker cannot defend on the ground that the contract was not the one he intended to sign, since where one carelessly signs an instrument without any fraud, trick or misrepresentation, without acquainting himself with the nature or provisions of the instrument, he is liable. So a mistake in determining the amount for which a note should be given, or in determining the identity of a payee of a check, cannot be taken advantage of against a bona fide holder." The above principles of law have been promulgated from actions in which the person signing the contract or executing a negotiable instrument has attempted to be relieved of his obligation because of the fact that he did not know what was in the contract or obligation that he signed through his own failure to read the instrument. The petitioners respectfully call the Court's attention to the fact that not one person that signed the Articles of Association has requested that he be permitted to remove his name from the petition. They realized what their obligation was when they signed the Articles, but have made no attempt to have their names removed from the Articles of Association. The only manner in which a person who has signed the Articles of Association can have his name removed therefrom is in the manner provided for by statute. which has already been discussed in Point III of this brief. VI. The Court erred in considering the fact that no definite plan of levee construction or of reclamation was offered. (Motion for New Trial. Point No. XII). The Trial Court also found in its findings and judgment that the "petitioners have further failed to prove their plan will reclaim or protect the area in question." Appellants contend that there is no provision in the statutes pertaining to the formation of a levee district of this type that the petitioners must present a specific plan to the Trial Court and prove that it will reclaim or protect the area in question. If such procedure was necessary, certainly the statutes would have so provided. In filing a petition for the formation of a levee district and the hearing incident thereto, the petitioners have only to conform to the statutes governing that type of action, and should not be required to anticipate some alleged requirement which may be thought of by the Trial Court. There were no maps prepared and introduced by the petitioners showing a plan for the proposed improvement. The petitioners know, the exceptors know and the attorneys for the exceptors know, that the U.S. Government Engineers were to prepare the plans. However, before such plans could be prepared, there must be some legal entity to deal with the government. This action was instituted for the purpose of having a legal entity created which could do so. At Page No. 288 of the Bill of Exceptions, Charles Redmond, an engineer and one of the witnesses for the exceptors, stated that a flood control project of some kind would be feasible. Appellants urge that they were not required to present a plan for reclamation or protection of the area for the Trial Court to pass upon.
Bloodworth Bloodworth for Respondents.
I. The Circuit Court of Ripley County, Missouri properly held that the petitioners failed to sustain the burden of proof in failing to prove that a plan will reclaim or protect the area in question. Section 12492 Reenacted laws 1947, Volume 2, Page 226; Section 12495 Revised Statutes of Missouri 1939. II. The Circuit Court of Ripley County, Missouri properly held that the petitioners failed to sustain the burden of proof required of them in that they have failed to prove that a majority of the acreage involved in the proposed Little Black Drainage District of Missouri are willing to obligate their lands and themselves for tax or taxes for the cost of organization, making the improvements and maintenance. Section 12492 Reenacted laws 1947, Volume 2, Page 226; Section 12495 Revised Statutes of Missouri, 1939. III. The petitioners have failed to prove that the owners of a majority of the acreage of land in said proposed district signed the Articles of Association. Section 12492 Reenacted laws 1947, Volume 2, Page 226; Section 12495 Revised Statutes of Missouri, 1939. IV. The formation of the Little Black Drainage District is res judicata. William v. City of Hayti, 184 S.W. 40; State ex rel. National Subway Co. v. City of St. Louis 46 S.W. 981, 145 Mo. 551; Stone v. Winn, 165 Ky. 9, 176 S.W. 933, 34 C.J. 1028.
This is an action for the formation of a drainage or levee district, under provisions of Article 7 of Chapter 79, R.S. Mo. 1939, and acts amendatory thereof. The petition was filed in the Circuit Court of Ripley County, Missouri, July 16, 1949. Exceptions were filed denying all of the allegations in the Articles of Association by the defendant-landowners and motions to dismiss. The court dismissed plaintiffs' petition. From this judgment petitioners appeal.
In this opinion we will refer to the appellants, petitioners, as plaintiffs and to the respondents, exceptors, as defendants.
The petition stated the name of the proposed district, the number of years the same was to continue, the boundary lines of the proposed drainage or levee district, the names of the landowners or other individual or franchise property in said district, together with a description of the land; and it further stated that the owners of the real estate in such district, whose names were subscribed to the petition, were willing to, and did, obligate themselves to pay the tax or taxes which might be assessed against their land or other property for paying the expenses of organizing the district, and of making and maintaining the improvements that might be necessary to reclaim or protect said lands.
The defendants, exceptors, filed exceptions denying generally all statements and allegations of said articles of association.
The evidence, on the part of petitioners, shows that the articles of association were exhibited to every person signing said petition; and that they were given an opportunity to read said articles. There was no testimony that the signers were unable to read or were misled by the persons obtaining their signature on the petition.
Petitioners' evidence showed that Little Black River in Ripley County, Missouri, is subject to frequent floods and during such flood periods, the river is very destructive and overflows a great portion of the land included in the proposed levee district. The evidence, on the part of petitioners, showed that the petition was signed by 165 landowners, which number of petitioners represented the majority of landowners in the area sought to be included in said district, and that these landowners owned a majority of the acres in said proposed district. The testimony on the part of petitioners was to the effect that the land in this district would be greatly benefited by the formation of this drainage district for the purposes of constructing a levee. Petitioners' testimony also was to the effect that it would be possible to remedy the proven flood conditions on Little Black River of the land in question.
We think the evidence is undisputed that this drainage district was being organized for the purpose of having the United States Government construct improvements by erecting a levee. In order to get this improvement made it was necessary that a drainage district be organized to secure a right-of-way for levee purposes and to maintain the levee after it was built by the government.
The evidence showed that public meetings had been held, discussing the organization of this drainage district and the feasibility of having the government construct a levee to protect the lands located in said district; that it was understood that the drainage district would have to pay the cost of the organization of the district and for the necessary right-of-way for said levee and for the maintenance of the improvements, if made. We think that the statement made in plaintiffs' brief, to-wit: "It was further proven that in order to obtain the Government aid, aforesaid, that it is necessary that there "be some legal entity with whom the Government can deal in making this type of improvement * * *" is a correct statement. We think the evidence in the case substantially showed that persons signing the petition knew of the government's requirements and also knew that they would not be required to pay for the construction of the levee.
The exceptors introduced evidence to the effect that the suggested improvement of erecting a levee on Little Black River would not benefit the landowners in said proposed levee district. They also introduced evidence that 63 of the landowners, who signed the articles of association to form this drainage district, were opposed to the formation thereof and that these landowners did not obligate themselves to pay the tax or taxes which might be assessed against their land or other property for paying the expense of the organization of said district and for making and maintaining the improvements necessary to reclaim or to protect said land. These 63 landowners filed exceptions and also signed the articles of association. They admit that the individuals who solicited them to sign the articles of association had attached to the petition, they signed, an exact copy of the articles of association. Some of them testified they understood that the levy of twenty-five cents an acre would be made against their lands for paying the expenses of the incorporation but they did not consent to obligate themselves for any further expenses. They all admit they voluntarily signed the petition to have the district incorporated but they state they thought the government was to pay all the other expenses. They do not deny they attended meetings where all the matters pertaining to the organization of this drainage district were discussed nor do they claim they were deceived by those landowners who circulated the petition. The evidence showed that several different landowners circulated petitions to have the district incorporated and each petition had attached to it the articles of association, which they were permitted to inspect and read if they chose.
At the end of the hearing the trial court adjourned to let the parties agree on certain facts and they filed two exhibits, "Y" and "Z". Exhibit "Y" is a list of names of persons who did not sign the articles of association and the number of acres of land owned by each in said district. Exhibit "Z" contained a list of names of parties who signed the articles of association but state they did not intend to obligate themselves for the entire cost of the improvements as contained in the heading thereto and the number of acres of land owned by each of them.
From this evidence, the court found that the number of acres sought to be incorporated in Little Black River Drainage District comprised a total of 28,151.36 acres. The court found that those signing the articles of association represented 17,224.86 acres of land within said area, or 3,149.18 acres of land over half of the acreage involved.
The court then found that 63 persons who signed the articles of association represent the objectors and now are protesting and objecting that they were not fully cognizant of their obligation and that they are not willing to obligate their land and themselves to pay the tax or taxes which may be assessed for making the improvements; that these 63 persons owned 5,858 acres of land in said drainage district. The court found that the number of acres of land owned by the signers of the articles of association, less the acreage of the 63 persons now objecting, totals 11,366.86 acres or 2,708.82 acres less than half of the acreage involved in the area. The court found that petitioners had failed to meet the burden of proof required under section 12492 R.S. Mo. 1939, in that they failed to prove that the owners of the majority of acreage involved in the proposed drainage district are willing to obligate their land and themselves for the cost of organization of the district and that petitioners have further failed to prove that their plan will reclaim or protect the area in question and denied the prayer for incorporation.
The first assignment of error on the part of plaintiffs, stated under points and authorities, is that the owners of a majority of the acreage in the area of the proposed levee district did not sign the petition.
We agree with plaintiffs under this contention. The trial court makes a very fair statement of the facts upon which he based his judgment. He found that the total acreage in the proposed incorporated drainage district amounted to 28,151.36 acres. He found that the owners of land who signed the articles of association represented 17,224.86 acres, which acreage amounted to 3,149.18 acres more than half of the area involved in the district.
The court then found that 63 persons who signed the articles of association were not fully cognizant of their obligations and were not willing to obligate their lands and themselves to pay tax or taxes assessed for making the improvements. He found that the acreage owned by these 63 persons amounted to 5,858 acres which, when subtracted from the 17,224.86 acres, left only 11,366.86 acres or 2,708.82 acres less than half of the total acreage involved in the district. From this testimony he found that plaintiffs had failed to prove that the owners of a majority of the acreage involved in the proposed drainage district were willing to obligate their land and themselves for the cost of organization thereof.
Section 12495 R.S. Mo. 1939, Mo. R.S.A. Sec. 12495, now being Section 245.025 R.S. Mo. 1949, provides who might file objections. It states:
"Any owner of real estate or other property as herein described, in said proposed district, who may not have signed said articles of association, objecting to the organization and incorporation of said levee district may, within forty five days after the date on which said articles of association and petition were filed, file his objection or objections why such levee district should not be organized and incorporated. Such objection or objections shall be limited to a denial of the statements in the articles of association, and shall be heard by the court in a summary manner, without unnecessary delay, and in case all such objection are overruled the circuit court shall, by its order duly entered of record, duly declare and decree said levee district a public corporation of this state, for a term not exceeding the time mentioned in said articles of association signed and filed. If the court finds that the land set out in said articles of association should not be incorporated into a levee district, it shall dismiss said proceedings and adjudge the costs against the signers of said articles of association in proportion to the acreage represented by each. Any person having signed the articles of association shall have no right to have said proceedings dismissed as to him without the written consent of the majority in acreage of the owners who signed said articles. * * *"
We think the court's finding that the 63 landowners who signed the articles of association could object and have their lands removed from the articles of association so as to reduce the acreage below the majority of the acreage involved was in open violation of the expressed wording of the statute.
There is no doubt if these 63 landowners, who signed the articles of association, had been induced to do so by fraud or misrepresentation they could have taken proper proceedings to have had their names removed from the petition but the evidence shows that each man who signed the petition was afforded the opportunity of examining the articles of association and that he placed the number of acres he owned on said petition voluntarily. We think that they should not be allowed to come into court and say they did not understand. State ex rel. St. Louis Car Company v. Hughes, 348 Mo. 125, 152 S.W.2d 193; Edmund S. Mills Corp. v. Stinebaker (Mo. App.) 67 S.W.2d 821; 17 C.J.S. p. 487; Garden of Eden Drainage District v. Bartlett Trust Co. (Mo. Sup.) 50 S.W.2d 627.
Again, we call attention to the statute above quoted: "Any person having signed the articles of association shall have no right to have said proceedings dismissed as to him without the written consent of the majority in acreage of the owners who signed said articles."
It will be noted that the court either finds the allegations in the articles of association to be true and incorporate the district or it shall dismiss said proceedings and adjudge the cost against the signers of said articles of association in proportion to the acreage represented by each. Therefore, the statute clearly provides that signers of the articles of association have no right to have said proceedings dismissed as to them. So we hold that the court erred in permitting these 63 signers of the articles of association to file exceptions to the incorporation of this district to have such proceedings dismissed and, in considering the acreage of said owners in finding that a majority of acreage was not shown.
We think our findings on the first assignment of error of plaintiffs also covers plaintiffs' assignments of error numbered II, III, IV and V.
Assignment of error numbered VI raises a more serious question. The court found that the petitioners failed to prove that their plan will reclaim or protect the area in question.
Plaintiffs complain of this finding as being error. We will quote from plaintiffs' brief and argument.
"Appellants contend that there is no provision in the statutes pertaining to the formation of a levee district of this type that the petitioners must present a specific plan to the Trial Court and prove that it will reclaim or protect the area in question. If such procedure was necessary, certainly the statutes would have so provided. * * *"
With this contention, on the part of plaintiffs, we cannot agree. In reaching our conclusion that the trial court's finding was justified, we follow the ruling of the Supreme Court of this State in Garden of Eden Drainage Dist. v. Bartlett Trust Co., supra. In this case objectors claimed the statute was unconstitutional because it provided, "such objection or objections shall be limited to a denial of the statements in the articles of association." On page 629 of the opinion, after the court states what must be pleaded in the articles of association, the following law is declared:
"Defendants' claim is that, while all land and property owners are notified by publication of the time and place of hearing, and any property owner, who has not already petitioned for the drainage district and agreed to pay all necessary taxes, may appear at the hearing in the circuit court on the question of forming the drainage district and file his objections `why the drainage district should not be organized and incorporated,' yet his objections are `limited to a denial of the statements in the articles of association.' This, it is claimed, so narrows and limits a property owner's right to object as to amount to a practical denial of any hearing. The only objections, it is claimed, which the court will hear consist of a denial of (1) the name of the district, and how long it will run; (2) the boundary lines of the proposed district; (3) the names of the owners of the land in the district, and the description of that owned by each; (4) that the names of owners of certain lands are unknown; and (5) that those signing are willing and obligated to pay the taxes assessed against their respective lands. And it is insisted that the objecting landowners are thereby precluded from showing such vital facts as that (1) the land within the boundaries of the proposed district are not a contiguous body of swamp, wet or overflowed lands, or lands subject to overflow; (2) that the signers of the articles are not the owners of a majority of the acreage of the lands embraced within the boundaries of the proposed district; (3) that the lands of the objector are not lands of the character above mentioned; (4) that the district is not formed for the purpose of having the lands reclaimed and protected from the effects of water, for sanitary or agricultural purposes; and (5) that the drainage of the same is not necessary to the public health, convenience, or welfare, or a public utility or benefit, and that the corporation is not for a public purpose. These, it is said, are not among the things which are necessary to be stated in the articles of association.
"It seems to us that this places a too narrow construction on the statutes above mentioned. It is true that section 10743, Rev. St. 1929, provides that the petition or articles of association of the proposed drainage district shall contain a statement of the five matters first above enumerated; but said statutes do not say that such articles shall not contain other matters vital to the formation of the drainage district, or that a statement therein of such other facts is not necessary to constitute a good petition or articles of association. In fact, said section plainly implies that the articles of association to be presented to the circuit court, and which constitutes the first pleading in the case, shall state all the facts which the statute makes essential in order to form a drainage district; and to this end the statute provides, to wit: (1) That the lands within the boundaries of the proposed district are a contiguous body of swamp, wet or overflowed lands, or lands subject to overflow; (2) that the signers of the articles are the owners of a majority of the acreage of the lands embraced within the boundaries of the proposed district; (3) that the lands of the district are lands of the character above mentioned; (4) that the district is formed for the purpose of having the lands reclaimed and protected from the effects of water, for sanitary or agricultural purposes; and (5) that the drainage of the same is necessary to the public health, convenience, or welfare, or a public utility or benefit, and that the corporation is for a public purpose. Some of these matters might be taken as implied by law without a specific averment.
"Now it will be seen that section 10745, supra, giving a property owner, who has not signed the articles of association, the right to appear and contest the matter on objections `why such drainage district should not be organized and incorporated,' only limits such objections to a denial of the statements in the articles of association, which, as we have seen, covers all the vital facts made essential to the formation of a drainage district. In other words, the articles of association which constitute the first pleading must set forth, though informally, the basic facts necessary to a cause of action for forming a drainage district, and a failure in this respect would itself constitute a ground of objection. To this end the statute provides that the articles of association, which constitutes the first pleading, `may be amended as any other pleading,' and that the objections shall be heard in a `summary manner.'"
Thus the law is that the objections do not hold solely to a denial of the statements in the articles of association but covers all the vital facts made essential to the formation of a drainage district.
Under section 12492 R.S. Mo. 1939, repealed and reenacted in 1947, Vol. 2, p. 226, the law provides that a drainage district may be organized for the purpose of having swamp, wet or overflowed land reclaimed and protected from the effects of overflow and other waters, and for sanitary and agricultural purposes, or from the effect of wash or bank erosion or when the same may be conducive to public health, convenience or welfare or public utility or benefit, by levee, or otherwise, and for that purpose they may make and sign articles of association in which shall be stated; etc.
Under this statute the objectors had a right to show that the purpose for which this district was being organized would not reclaim or protect the lands in such drainage district from the effects of overflow or other waters.
The objectors, who did not sign the articles of association, offered substantial and convincing testimony that this proposed levee district was not feasible; that it would not protect the lands from overflow; that said district bordered on the state of Arkansas and that the lands in this district were much lower than the lands at the state line and that the waters from the river would back up and overflow the lands in the proposed district and would not protect and reclaim them from the damage of said overflow waters. We think the court was justified in finding, under the facts in the case, introduced by objectors, who did not sign the petition, that the proposed district would not and could not accomplish the purposes for which it was being formed.
Judgment affirmed. Vandeventer, P.J., and Blair, J., concur.